BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. F (12/02/08) TRACY MORGAN, EMPLOYEE CLAIMANT HIGHLAND WINDOW, EMPLOYER RESPONDENT

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. F (12/02/08) TRACY MORGAN, EMPLOYEE CLAIMANT HIGHLAND WINDOW, EMPLOYER RESPONDENT NEW HAMPSHIRE INS. CO., CARRIER RESPONDENT OPINION FILED SEPTEMBER 3, 2009 Hearing before ADMINISTRATIVE LAW JUDGE ANDREW L. BLOOD, on July 17, 2009, at Jonesboro, Craighead County, Arkansas. Claimant represented by the HONORABLE LAURA BETH YORK, Attorney at Law, Little Rock, Arkansas. Respondents represented by the HONORABLE MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. STATEMENT OF THE CASE A hearing was conducted in the above styled claim to determine the claimant s entitlement to workers compensation benefits. On June 29, 2009, a pre-hearing conference was conducted in this claim, from which a Pre-hearing Order of the same date was filed. The Pre-hearing Order reflects stipulations entered by the parties, the issues to be addressed during the course of the hearing, and the parties contentions relative to the afore. The Pre-hearing Order is herein designated a part of the record as Commission Exhibit #1. The testimony of Tracy L. Morgan - the claimant, and Brent D. Watts coupled with medical reports and other documents comprise the record in this claim.

2 DISCUSSION Tracy L. Morgan, with a date of birth of September 29, 1959, has a high school education. Claimant is left hand dominant. Claimant s employment history since leaving high school has consisted of construction work, electrical, and HVAC. In 1992, claimant commenced his employment with respondent-employer installing windows and doors. Claimant acknowledged that he experienced pain/problems with his left elbow prior to December 2, 2008, explaining: Yes, ma am, I ve had what I thought to be tennis elbow, and soreness - sore to the touch. It never stopped me from working, it d go away. (T. 9). Claimant did not take pain medication to address the complaints with the left elbow nor did he miss time from work as a result of same. Regarding the events of December 8, 2008, which serves as the basis for the present claim, claimant s testimony reflects: We was ready to move our truck from one (1) point to another. We had windows leaning against a pickup. The tailgate s down, I grabbed a window, stepped back and was gonna set it up in there, and as I come around, the window hit the tailgate and hurt my arm. (T. 9). The windows were double-hung windows. Claimant continued, in describing the manner in which he handled the windows: Yes, ma am, I grabbed it inside the window, which is a little over three (3) foot wide, and I went to hoist it in the truck, coming around right to left, and it hit the tailgate - it was a sudden stop. (T ). Claimant testified that he experienced immediate pain in his arm, but, mainly located in my shoulder. (T. 11). The claimant completed his work day following the incident. 2

3 The testimony of the claimant reflects that he reported the December 2, 2008, injury to his supervisor, Brent D. Watts, the following morning. The claimant was provided with medical care by respondents, in that he received medical treatment at White River Medical Center and ultimately under went surgery relative to his left shoulder under the care of Dr. Grammer. Claimant acknowledged that at the time of the December 2, 2008, accident he did not observe swelling or bruising in the left elbow, although he did experience pain, which was not as great as that in the shoulder. Claimant received pain medication in the treatment of his shoulder complaint. While a December 3, 2008, medical report reflects tenderness to palpitation of the posterior elbow a further notation in the medical records regarding the elbow was not made until March 19, 2009, when Dr. Grammer performed an x-ray of the elbow. Regarding the afore, the claimant explained: Ma am, the elbow wasn t hurting me that bad. It just - I was holding it still, and unless I tried to extend it or what - it was that painful. And, according to Dr. Grammar... (T. 12). The claimant underwent the left shoulder surgery under the care of Dr. Grammer on February 25, The testimony of the claimant reflects that his elbow symptoms became worse following the shoulder surgery. Claimant testified that he was provided a sling and physical therapy relative to the left elbow after his shoulder surgery. Claimant observed that the physical therapy did not change things as far as his elbow symptoms were concern. Claimant denies that he had an accident or incident involving his left elbow between December 3, 2008, and March 19, Claimant acknowledging being diagnosed by Dr. Grammer with severe osteoarthritis of the elbow, however denies that he was provided arthritis medicine. The testimony of the claimant 3

4 reflects that Dr. Grammer scheduled an MRI for his left elbow, however the scheduled testing was canceled by respondent-carrier. In explaining the absence of an elbow complaint on the Form N which was completed in connection with the December 2, 2008, accident, claimant testified: Well, like I said, the whole area was hurting, but the shoulder was just more chronic - it hurt worse. And I didn t know but what it was all related. (T.14-15). While the claimant was released to one (1) arm duty on April 9, 2009, the credible testimony in the record reflects that due to the nature of respondent-employer s business there is nothing in the claimant s job that can be performed with one (1) hand. As a consequence of the afore the claimant did not return to work in April Claimant continued to receive temporary total disability benefits in connection with the acknowledged December 2, 2008, left shoulder injury. The testimony of the claimant reflects that his elbow has remained unchanged in that it is painful and he is unable to straighten it: No, I can t straighten it. I like thirty-five degree straightening it, and I can only bend it to ninety (90). If I go past there, it s really painful, but I can bend it to there (indicating). (T. 15). Claimant noted that prior to December 2, 2008, aside from occasional tennis elbow, it was fine. The testimony of the claimant reflects, regarding the impact of the left elbow symptoms subsequent to December 2, 2008, on his daily activities: Yeah, before. I mean, at the time, it was okay. I could still part my hair and eat with it, but. Well, like, left-handed, I used to comb my hair and brush my teeth and I can t hardly floss, and I mean, you run into several things - you need to reach your head. (T. 16). 4

5 Regarding his physical capabilities prior to the February 25, 2009, left shoulder surgery, claimant testified: Well, I wasn t trying. Before the surgery, that shoulder was hurting. I was holding this arm, trying not to do much with it, and if I d raise the shoulder, it d hurt, so I wasn t trying. (T. 16). During cross examination claimant testified regarding the onset of his left elbow complaints prior to December 2008: I had it once way back in - when I was in my thirties (30's), And then I had another flare-up later on. It d always just go away. (T. 17). Claimant estimated that he had had three (3) to four (4) flare-up with his tennis elbow : Ma am, I don t know. It s been a long time. I mean, I didn t need medical help for it. It d just - kind of take care of it, it d go away. (T. 17). The claimant testified that the December 2, 2008, incident/accident involving the windows occurred probably around noon, and that he finished his work day at 4:00 p.m. Claimant acknowledged that when he reported the injury to Brent Watts the following day, while he relayed the injury to his left shoulder, he did not mention the injury to the left elbow. Claimant testified denies that he told Dr. Grammer that he had tingling in both hands prior to his December 2, 2008, accident. The testimony of the claimant reflects, regarding any hand complaints: Prior to the injury, no, I didn t have tingling in my hands. I don t know what we re saying here. Tingling in my left hand, before I was injured? I wake up at night with them, you know, like they re asleep - I ve done that. (T. 20). Claimant testified that prior to his February 25, 2009, left shoulder surgery he mentioned 5

6 to Dr. Grammer that his left elbow was bothering him. Claimant offered regarding his left elbow complaint, that Dr. Grammer thought when eh fixed this [the shoulder] it would go away. (T. 23). Further, the claimant testified that when he started physical therapy he relayed complaints regarding his left elbow. Claimant denied that as of May 23, 2009, he had resumed his regular activities, noting that his shoulder had been bothering him all along. Claimant testified that he attempts to adhere to the recommendations of Dr. Grammer with respect to limitation on the amount of weight he lifts. The testimony of the claimant reflects that he registered complaints regarding his left elbow to the physical therapist, who provided therapy on the elbow on her own. Claimant further testified regarding the payment for the physical therapy on his elbow: Well, I said yes, and let me back up. Stephanie took it on her own to do that, so the pay was just the same as the shoulder. So, really, I don t guess they was paying for that. She took it on her own to do that. (T. 25). Brent D. Watts, who has been employed by respondent-employer for seventeen (17) years, is the shop foreman and claimant s supervisor. Regarding his knowledge of the claimant s December 2, 2008, injury, Mr. Watts testimony reflects: I wasn t present at the job site, but he did come in, after it happened, to the office, and told me about it, yes. He reported that he had hurt his shoulder lifting windows into the back of the truck. Just shoulder pain is all he mentioned to me, nothing about arm or elbow at that time. (T. 27). Mr. Watts testified that he has been in contact with the claimant since the claimant s 6

7 February 25, 2009, left shoulder surgery. The testimony of Mr. Watts reflects that he claimant did not have any complaints of elbow pain prior to the shoulder surgery. Mr. Watts continued: After the surgery, I talked to him, and he said he was having trouble with his elbow, with the movement in it and such, and kind of first thought that it might be just from the immobility because of the sling and such, and that stuff. Later, down the road, we had talked, and he had mentioned that it wasn t getting any better, so - not even with physical therapy; they were trying to do some therapy on it, so. (T. 28). In describing the claimant s work ethics, the testimony of Mr. Watts reflects: Mr. Morgan is a very good worker. I traveled all over with him; he does his job, never complains; never complains about anything. (T. 28). Mr. Watts confirmed that respondent-employer does not any one (1) arm duty available in its employ. The medical in the record reflects that the claimant was seen at Midway Medical Clinic by Karen Fulgham, APN, on December 3, The clinic note relative to the claimant s visit reflects, in pertinent part: CHIEF COMPLAINT: New patient, complains of constant left shoulder pain onset yesterday. Works at Highland Windows - does a lot of heavy lifting. Could hear shoulder popping yesterday while lifting heavy objects. Has difficulty flexing left forearm. HPI: onset yesterday, pain in left shoulder; heard a pop. Has limited ROM due to pain, hand is numb at times. Was not lifting over head at the onset. OBJECTIVE GENERAL APPEARANCE: The patient is well developed and well nourished. In no acute distress. LEFT ARM EXAM: guarded ROM due to shoulder pain; tenderness to palpation of the anterior shoulder just medial to the humerus, no tenderness fo AC joint; no tenderness below the acromion brachral and radial pulses +2 intact; tenderness to palpation of the posterior elbow. (CX. #1, p. 2). 7

8 The December 3, 2008, clinic note reflects an assessment of the claimant s complaint as tendinitis. The claimant was seen at the clinic in follow-up on December 10,2008. The clinic note of the visit reflects, in pertinent part: CHIEF COMPLAINT Pt is here for f/u for left shoulder pain and hypertension. Shoulder pain is much improved. Has increased range of motion from last clinic visit. Pain is usually worse at night. Flexeril and Ultram very effective in controlling pain. Started on lisinopril during last clinic visit. OBJECTIVE * * * LEFT ARM EXAM: Rom improved but not yet full ROM without pain, tenderness to palpation to anterior and lateral shoulder structures which is subjectively less than last exam (CX. #1, p. 3-4). The medical reflects that the claimant was again seen at the clinic on December 30, The office note regarding the afore visit reflects, in pertinent part: SUBJECTIVE CHIEF COMPLAINT Pt is here for f/u for hypertension and left shoulder pain. Shoulder has increased range of motion, but he still has frequent, mild pain.... Still taking Lisinopril.... Left shoulder still with pain and limited mobility, has not been able to work light duty on the job; no paresthesias; shoulder is better but not resolved, awakens with pain at night during sleep. OBJECTIVE * * * LEFT ARM EXAM left arm tenderness anterior and lateral; ROM improved but still limited abduction. (CX #1, p. 5). The December 30, 2008, clinic note reflects that the claimant was referred to Dr. Allen for left shoulder pain, however a January 25, 2009, addendum reflects that an appointment had been 8

9 made for the claimant to be seen by Dr. Grammer on January 29, On February 9, 2009, the claimant was seen by Dr. W. C. Grammer at Medical Park Orthopaedic Clinic relative to his left shoulder pain. The report reflects, in pertinent part; Mechanism of Injury: The patient was lifting a heavy object and strained the shoulder. The patient describes the mechanism of injury as a traction injury and reports there was immediate pain in the left shoulder. The pain is currently mild to moderated in intensity and has an aching, a dull, and sharp quality. It does not radiate. He denies any additional injuries. Associated Signs and Symptoms: The discomfort interferes with sleep and is present at rest. The patient also describes, decreased range of motion and catching in the left shoulder. He has tingling in both hands which has been there prior the injury. The pain is aggravated by lifting the arm above the head, lifting an object, activities of daily living, and elevating the arm. The patient has not found relief from any prior treatments, rest, muscle relaxers, pain medication and steroid shot in the muscle. Recent Care: He was seen by nurse practitioner who ordered rest, muscle relaxers, pain medication. Patient had little to no improvement. He was then referred here for evaluation and treatment. PHYSICAL EXAMINATION Left Upper Extremity Shoulder: * * * * * * * * * Upper Arm: no tenderness, swelling or deformities Elbow: Range of Motion: full and painless in all planes, no crepitance Strength: flexion and extension 5/5 Hand: 9

10 Range of Motion: full arc of motion in the small joints of the hand, no discomfort elicited Strength: all intrinsic and extrinsic hand muscles 5/5 Muscle Tone: tone normal Muscle Bulk: muscle bulk normal Sensation: sensation intact to light touch Skin: no skin lesions or discoloration Vascular Exam: no edema or cyanosis, radial and ulnar pluses normal Assessment R/O Rotator Cuff Tear (Traumatic) Moderate Shoulder Pain Unresponsive to treatment (CX. #1, p ). The claimant underwent an MRI of the left shoulder on February 9, 2009, and was seen in follow up by Dr. Grammer on February 12, The MRI disclosed a large rotator cuff tear in the left shoulder, however the remainder of the February 12, 2009, report mirrored the previous report with respect to findings documented on physical examination. On February 25, 2009, the claimant underwent surgery relative to his left shoulder at White River Medical Center under the care of Dr. Grammer. (CX. #1, p ). The medical in the record reflects that the claimant was seen by Dr. Grammer on March 19, The report regarding the afore visit reflects, in pertinent part: History of Present Illness The patient returns for postoperative visit after undergoing min open rotator cuff repair and distal clavicle resection of his left shoulder on 02/25/09. He is 3 weeks out from surgery. The patient reports limited ROM of his left elbow. He is recovering at home, has been receiving physical therapy, is taking pain medication, and has resumed activities of daily living. The patient underwent xrays of his elbow today. Patient s therapist called about 3-5 days after surgery to report decreased ROM of (L) elbow. She was given orders at that time. She phoned again on Monday to report no progress with patient s ROM. She reported that 10

11 patient s elbow would pop with extension. Patient presents today and reports that his elbow was fine until the accident. He states that he reported these symptoms but the focus was his left shoulder. He states that since the accident he has pain on the tip of his elbow and has limited ROM that is worsening. Physical Examination * * * Elbow: Inspection/Palpation : moderate localized tenderness over the - olecranon/proximal ulna radial head triceps insertion, no swelling, no joint effusion present, no deformities noted, test for epicondylitis negative Range of Motion: ACTIVE FLEXION: 30 to 60 degrees-moderately painful at the terminal portion of the arc of motion, ACTIVE EXTENSION: -30 TO -40 moderately painful at the terminal portion of the arc of motion, mild diffuse crepitance present-noted during flexion and extension, ankylosis present Strength: FLEXION AND EXTENSION 5/5 * * * Assessment Aftercare post surgery of musculosketal system R/O Elbow Contusion Osteoarthrosis of the elbow R/O Fracture of radius with ulna, lower end, closed Elbow pain PLAN Orders Elbow, 3 views Elbow MRI (Right) (Without Contrast) Instructions Rotator cuff precautions reviewed Continue therapy MRI - r/o acute injury superimposed on elbow OA (CX. #1, p ) The claimant underwent x-ray during the March 19, 2009, visit. The radiologist report disclosed 11

12 severe osteoarthrosis of the elbow. (CX. #1, p. 20). When the claimant was seen in follow-up by Dr. Grammer on April 9, 2009, the focus of the examination was the claimant s post-operative rotator cuff repair. (CX. #1, p ). The claimant was referred to physical therapy following the February 25, 2009, left shoulder surgery. The February 27, 2009, initial evaluation of the claimant at Therapy Works, Inc., noted complaints of left elbow pain as well as restriction in the range of motion in the left elbow. (RX. #1, p. 12). A Form AR-N, Employee s Notice of Injury, was completed in connection with the claimant s December 2, 2008, injury, on January 8, The form reflects the body part injured as the shoulder. In providing a description of the injury, the Form AR-N reflects, lifting windows the window hit the truck tailgate the sudden stop injured shoulder. (RX. #2, p. 1). After a thorough consideration of all of the evidence in this record, to include the testimony of the witnesses, review of the medical reports and other documentary evidence, application of the appropriate statutory provisions and case law, I make the following: FINDINGS 1. The Arkansas Workers Compensation Commission has jurisdiction of this claim. 2. On December 2, 2008, the employment relationship existed among the parties, when the claimant sustained injuries to his left shoulder and left elbow arising out of and in the course of his employment, while earning wages sufficient to entitlement him to weekly compensation benefits of $301.00/$225.00, for temporary total/permanent partial disability. 3. Respondents have accepted as compensable and paid appropriate workers compensation benefits in connection with the claimant s December 2, 2008, left shoulder injury. 12

13 4. Respondents shall pay all reasonably necessary medical and hospital expenses arising out of the December 2, 2008, left shoulder and left elbow injuries of the claimant. 5. The respondents have controverted the claimant s entitlement to workers compensation in connection with the December 2, 2008, left elbow injury. CONCLUSIONS The claimant contends that he sustained an injury to his left shoulder and left elbow within the course and scope of his employment with respondents on December 2, Claimant maintains that as a result of the left elbow injury he is entitled to medical treatment at the expense of respondents. Respondents deny that the claimant sustained an injury to his left elbow in the acknowledged December 2, 2008, accident. The present claim is one governed by the provisions of Act 796 of 1993, in that the claimant asserts entitlement to workers compensation benefits as a result of an injury having been sustained subsequent to the effective date of the afore provision. In order to receive workers compensation benefits the claimant must establish that the injury arose out of and in the course of the employment, that the injury caused internal or external harm to the body that required medical services, that there is medical evidence supported by objective findings establishing the injury, and that the injury was caused by a specific incident and identifiable by the time and place of occurrence. Ark. Code Ann (4) (Supp. 2007). The claimant bears the burden of proving a compensable injury by a preponderance of the credible evidence. Ark. Code Ann (4)(E)(i) (Supp. 2007). If the claimant fails to prove any one of the afore-mentioned requirements by a preponderance of the evidence compensation must be denied. Mikel v. Engineered Specialty Plastic, 56 Ark. App. 126, 938 S.W.2d 876 (1997). 13

14 A compensable injury must be established by medical evidence supported by objective findings. Ark Code Ann (4)(D) (Supp. 2007). Objective medical evidence is necessary to establish the existence and extent of an injury but not essential to establish the casual relationship between the injury and a work-related accident. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). As noted above, there is not a dispute regarding the mechanics of the claimant s December 2, 2008, accident while within the course and scope of his employment. The claimant is left hand dominant. The claimant has been employed by respondent-employer installing windows and doors since Claimant acknowledged experiencing occasional pain in his left elbow, which he characterized as tennis elbow, over the years, however noted that the symptoms resolved without the need to seek medical treatment or the use of prescription medications. The credible evidence in the record preponderates that while moving windows on December 2, 2008, the claimant struck the tailgate of the truck with such force as to produce immediate sudden pain in his left upper extremity, which did not subside. Further, the evidence preponderates that the greatest or most intense pain was experienced in the claimant s left shoulder area, a fact subsequently borne out by an MRI scan which disclosed the presence of a large rotator cuff tear (traumatic). The claimant received pain medication in the treatment of his left shoulder complaint subsequent to the December 2, 2008, accident. Further, the claimant credibly testified that while he did experience pain in the left elbow, the more severe symptoms were in the left shoulder, which was addressed first by medical providers. Once the claimant s left shoulder injury was addressed through surgical repair, the heretofore left elbow complaints became more prominent 14

15 and in need of medical care. The medical in the record reflects that at the time of the claimant s initial medical treatment following the December 2, 2008, injury in addition to his shoulder complaints he relayed difficulty flexing left forearm. Further, the examination recorded tenderness to palpation of the posterior elbow. Following his February 25, 2009, left rotator cuff repair surgery, the claimant relayed to the physical therapist his left elbow complaints on February 27, X-rays of the claimant s left elbow disclosed the presence of severe osteoarthrosis of the elbow. The aggravation of a pre-existing, non-compensable condition by a compensable injury is itself compensable. Hubley v. Best Western-Governor s Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996). Additionally, the aggravation of a pre-existing condition by a specific work-related incident need not be the major cause of a claimant s disability in order to be compensable. Farmland Insurance Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). In the instant claim, the evidence preponderates that the claimant sustained either a new injury to his left elbow or an aggravation of his pre-existing condition arising out of and in the course of his employment at the time of the December 2, 2008, compensable accident. The claimant s treating physician has recommended additional diagnostic testing, in the form of an MRI, to rule out an acute injury superimposed on the left elbow oteoarthritis. Ark. Code Ann (a) mandates that the employer provide all medical treatment that is reasonably necessary for the treatment of a compensable injury. Respondents have controverted the claimant s entitlement to workers compensation benefits in connection with the injury to his left elbow growing out to the December 2, 2008, compensable injury. 15

16 AWARD Respondents are herein ordered and directed to pay all reasonably necessary medical, hospital, nursing, and other apparatus expenses, to included medical relate travel growing out of and in connection with the treatment of the claimant left elbow injury of December 2, Maximum attorney fees are herein awarded on any subsequent indemnity benefit growing out of the claimant s December 2, 2008, compensable left elbow injury, in that respondents have controvert the same in its entirety. until paid. This award shall bear interest at the legal rate, pursuant to Ark. Code Ann , Matters not addressed herein are reserved. IT IS SO ORDERED. Andrew L. Blood, ADMINISTRATIVE LAW JUDGE 16